CBI hands are tied in several States

The Government of India has been pursuing with the state Governments for consent and the linked notification to extend powers and jurisdiction of Delhi Special Police Establishment (DSPE) to whole of their states under IT Act.

This matter was taken up at the meeting of Principal Secretaries (Personnel and General Administration) of all State Governments held in New Delhi on 18 May this year.

On the request of CBI, the Department of Personnel earlier had requested all State Governments to convey their general consent under section 6 of DSPE Act, 1946 to enable the CBI to take up the investigation of cases registered under IT Act, 2000 as amended by IT (Amendment) Act, 2008 in the territorial jurisdiction of their States.

The Central Government had requested the State Governments to convey their general consent. Till now only Andhra Pradesh, Himachal Pradesh, Tamil Nadu, Sikkim, Manipur, Nagaland, Mizoram and Jharkhand have issued general consent under section 6 of the DSPE Act for investigation of offences under IT Act to CBI and the Government of India has issued notifications in this regard under section 5 of DSPE Act.

Madhya Pradesh Government’s Gazette notification insulates IAS, IPS, IFS officers of the MP cadre serving under the state govt from probe by the CBI of offences under the Prevention of Corruption Act

The request by Government of India for “general consent” and the linked notification to extend powers and jurisdiction of Delhi Special Police Establishment (DSPE) to whole of their states under IT Act notwithstanding, the Madhya Pradesh government, in October 2012, had issued a gazette notification that completely insulates Indian Administrative Service, Indian Police Service and Indian Forest Service officers of the Madhya Pradesh cadre serving under the state government from investigation by the CBI of alleged offences under the Prevention of Corruption Act, or any other offence or acts of criminal conspiracy.

The Madhya Pradesh Home Department had issued an extraordinary gazette notification on 12 October 2012. The operative part of this notification is self explanatory. It reads: “In supersession of all previous notifications and letters issued by the Government of Madhya Pradesh in pursuance of Section 6 of the Delhi Special Police Establishment Act 1946 (25 of 1946) the state government hereby gives its consent to the extension of the powers and jurisdiction of the members of the Delhi Special Police Establishment in the whole of the state of Madhya Pradesh for investigation of the offences committed by the employees of Central government, Central public undertakings and persons connected with the affairs of the Central government (excluding officers of Indian Administrative Service, Indian Police Service and Indian Forest Service borne on Madhya Pradesh cadre serving under the government of
Madhya Pradesh at the time of commission of the alleged offences or their investigation).” With this gazette notification, the CBI loses the power and jurisdiction to investigate alleged offences by an all-India service officer of the MP cadre while on deputation to the Centre after the officer returns to the parent cadre from deputation.”

What about the Vyapam scam?

With the Madhya Pradesh Government notification in place, question arises how the CBI will investigate alleged involvement of any all-India service officer involved in the massive Vyapam Scam or any other case under its investigation.

Another important matter linked with the CBI relates to the deadline of 10 April 2014 that was fixed by the apex court for setting up the special CBI courts.

Government of India has reminded the concerned state governments about this deadline which is already over and asked the concerned state governments to expedite the process to operationalize the Additional Special CBI Courts.

The matter has been hanging fire and the Government of India was even compelled to take up the matter with the State Governments at the last meeting with the Principal Secretaries (Personnel and General Administration) of all State Governments and Union Territories.

The Supreme Court in CBI vs.Saurin Rasiklal Shah case (Crl App. No.88-93 of 2003) had directed on 10 December 2013 that the “concerned” State Governments will provide necessary assistance to the Government of India to make the additional Special Courts functional within a maximum period of four months from the date of order else the Central Government may take action under Article 247 of the Constitution.

The Department of Personnel and Training has requested the concerned State Governments several times to make operational the remaining additional special courts in compliance of the Supreme Court direction. According to confirmed information, of the 22 special courts to be set up, have become operational in different States but five such courts, 1 each in Andhra Pradesh and Jammu and Kashmir and 3 in West Bengal were remaining to be operationalized due to administrative reasons.

CBI derives power to investigate from the Delhi Special Police Establishment Act, 1946. Section 2 of the Act vests DSPE with jurisdiction to investigate offences in the Union Territories only. However, the jurisdiction can be extended by the Central Government to other areas including Railway areas and States under Section 5(1) of the Act, provided the State Government accords consent under Section 6 of the Act.